Opinion
M377309; CA A36419
Argued and submitted April 9, 1986.
Vacated and remanded May 14, 1986.
Appeal from District Court, Multnomah County, Kimberly C. Frankel, Judge.
Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.
Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Conviction vacated; remanded for further proceedings not inconsistent with this opinion.
Defendant appeals his conviction for driving while under the influence of intoxicants. The state concedes that the trial court erred in refusing to require the state to produce statements of defendant and the arresting officer made during a police internal affairs investigation of the circumstances surrounding defendant's arrest, and we agree. ORS 135.815; State ex rel Wilson v. Thomas, 74 Or. App. 137, 700 P.2d 1045, rev den 300 Or. 64 (1985).
Because the statements are not in the record, we are unable to determine what effect the failure to disclose had on the trial. We therefore vacate the conviction and remand the case to the trial court. If that court determines, after disclosure of the statements, that the failure to disclose was harmless, it may reinstate the conviction. See State v. Miller, 300 Or. 203, 220-22, 709 P.2d 225 (1985); State v. Van Hooser, 266 Or. 19, 511 P.2d 359 (1973). Otherwise, it shall order a new trial. See State v. Wood, 67 Or. App. 218, 225 n 2, 678 P.2d 1238, rev den 297 Or. 124 (1984); State v. Addicks, 28 Or. App. 663, 560 P.2d 1095 (1977). If the state fails to disclose the statements, the court shall dismiss the case with prejudice or impose an other appropriate sanction. ORS 135.865.
Conviction vacated; remanded for further proceedings not inconsistent with this opinion.